"The UNGP’s 2nd Pillar as Soft Public and Harder Private Law": Presentation at the European Center for Constitutional and Human Rights (Berlin 20 March 2023)

 

 

I was delighted to have the opportunity to share some thinking about the UN Guiding Principles for Business and Human Rights at the European Center for Constitutional and Human Rights in Berlin 20 March 2023. My thanks to the always brilliant dr. Daniel Augenstein (Tilburg) for organizing the event. Thanks as well to the extraordinary dr. Miriam Saage-Maaß (legal director, ECCHR where she had built up the Business and Human Rights Program). 

I was asked to consider the hard law- soft law divide that appears to be built into the UNGP.  Like gender roles, the hard law-soft law divide exists, but is also constructed out of expectations driven by the structural bias of the system from out of which the UNGP emerged in ways that do not necessarily align with practice, or with the way conceptualization of law, governance, authority, and management have been evolving over the last several decades. Like traditional gender roles anchored in patriarchy, legalities anchored in old notions of the law-state nexus tends to miss the richness and variegation in the ordering of social relations, and to ignore the rich inter-penetrations of law, governance, compliance, public, private, and social systems that together constitute the ecologies within which it is possible to talk seriously about the embedding of human rights, sustainability and climate related duties/responsibilities in economic activity within and across territorial borders. More importantly, assigning or insisting on these "gendered" roles for law, the state, the enterprise, and consequently, civil society, substantially impedes efforts of all stakeholders to effectively move forward the business and human rights project both as a current expression and toward whatever goals its stakeholders have identified.  

In the presentation, entitled "The UNGP’s 2nd Pillar as Soft Public and Harder Private Law," I explored the way that the UNGP might be better understood as a platform for legal inter-penetration. That inter-interpenetrate can be understood in several forms.  First, it concerns the structural coupling of hard and soft law, along with compliance and administrative guidance/decision-making, within each of the three UNGP Pillars (state duty; corporate responsibility; remedial obligation) and between them. Second, it suggests that these inter-penetrative regulatory forms are both replicated within each of the pillars and then shape their inter-relationships as simultaneously both autonomous and inter-connected regulatory orders. Third, it suggests a necessary synergy between both regulatory forms and regulatory sources--that is between all actors in and around global production chains.  It follows that to understand the way that the UNGP might be read in this environment it is necessary to read the 3 Pillars in parallel and with/against each other. 

Some of the consequences then become clearer: (1) a hyper focus on formal lawmaking within states will tend to fall short because it ignores the regulatory ecologies from which traditional public law acquires its effective power; (2) focusing on states intensifies the trajectories toward the commodification of regulatory products and transforms  law from a driver to factor in the production of economic activity, like labor and capital; (3) international legalities are hobbled both by the limits of the ideologies around which they are built; (4) trajectories of reform (through litigation or political engagement that focus exclusively on law miss the opportunity to shape those areas of regulatory action which increasingly shape the landscape of human rights, sustainability and climate change embedding in economic activity. One can quibble about the contours and effects of these consequences, and add others.  That is what enriches the conversations around the UNGP as a framework and its utility as the structure around which such engagements may be usefully undertaken. Nonetheless, what becomes clear is that business and human rights single mindedness, one rooted in the gendering of the UNGP Pillars and the roles that defines each of them, and then ordering this, like patriarchy, within power hierarchies, both distorts contemporary regulatory reality and misses opportunities to advance the project of business and human rights, sustainability (including climate ) through whatever normative lens one prefers. Those opportunities, both realized and missed,  around the state driven legalization of human rights due diligence provide a rich venue for exploring these issues..

The  PowerPoint of the presentation follows and may be accessed here.